opportunity. >> i think commissioner, it's slightly different. they got a cu. but unfortunately, all of the conditions of the cu was not made known to them and therefore, they had now acquired a partial right. the question is really whether the planning department and the zoning administrator are going to pursue that heavily to be able to get an amended cu, which then would enforce the additional conditions. >> to me, i guess i want to focus on the issue of really was there a violation here? and based on not just what the appellant, all of the facts that the appellant put before us, but, as well as mr.

sanchez' very candit comments about the errors that occurred on the website and on behalf of the city, i don't believe there was a willful violation here of the c u, given there was incorrect information on the website. i think that the appellant here reasonably relied on information that was on the website. i don't see that can be a basis for a violation here or a penalty. i do think that there has to be a process whereby the appellant can appeal or try to amend the existing cu, if he does want to operate after midnight and there should be a process for neighbors to have input into that. but based on what we have before us, which is a violation, i don't find there is any basis of a violation.

. >> well, except that part of the violation is on conditions that aren't there. >> right:i mean, that is the issue is that the violation as mr. sanchez stated is based on operating after midnight. that condition was not known to the appellant. therefore, he could not have willfully violated that condition. >> and i understand what your point is with respect to the immediate notice of violation and penalty. however, i was trying to jump ahead to see if question craft a solution, that would carry them through to a better situation both in terms of how the department is going to view them in terms of their future actions, and then how they can get along to a certain degree better with their neighbors. >> and just to be clear, not

to take away from anything that the commissioner has said, just that the code does not require willful violation, but a violation. >> at least it requires knowledge of the condition, which i don't think there was here. >> am i aloud to ask a question. >> yes, procedural questions. >> you have to come to the microphone. >> does the certificate of authority apply or does it not? if it's a question of whether they violated it or it doesn't apply or not? >> may i request mr. sanchez? >> yes, because i don't know what the certificate of authority is. >> i'm assume teagues the conditional use authorization. maybe i didn't track this completely. was it the motion that was made at the commission that included

1-12, but then somehow 8-[#12k-/], so there is a record showing that shows conditions were approved by the commissioner at that particular meeting? >> yes. scott sanchez, planning department. so the standard procedure at the conditional use hearings is that the week before the hearing, staff prepares a case report with a draft motion. and then in this case, we would have be actually drafting conditions 1-7, forwarded that to the planning commission. at the hearing, the commission accepted the draft motion with the additional findings, 8-12. however, when staff finalized that motion and gave it the motion number and considered that the final action of the planning commission, they failed it include those additional conditions. >> if i went back to the minutes. >> the planning commission adopted the motion with those additional conditions and that was the oral action that they took at the hearing, but it

wasn't reflected in the written decision because staff failed to add those into the motion. and they think at one point there was a certificate of appropriateness for 620 jones and one of the performs that we revieweded for the work did also have the certificate of appropriateness, but that would have been for exterior changes and maybe it was signage. >> i guess i just feel that the next step would be to go back and request another conditional use review to clarify those conditions. and i guess i would tend to agree -- i'm not sure i'm interested in any sort of penalties in the meantime, but

least create an opportunity to clarify and there would certainly be opportunities for neighbor input and basically relook at the issue of the 12-2 on the weekends. >> i understand what you are saying, commissioner. however, i think there is some justification for the permit holders reliance on what he saw. and i think that the department admits that. and i'm just trying to find without us going through a lot more process to see if we can come to a better conclusion. because at this point, if we uphold the zoning administrator on this, then he can't operate unless he takes somebody to court. or he goes back and files an

amended cu. >> he can't operate from 12-2 on weekends? >> right. >> right. >> and so you will get your chance, but i will ask you for another comment, mr. sanchez. so that puts them in a hard place, because it is going to happen in the middle of their growth period, if you will, to the success of their restaurant and bar. you know, these things come in and get new and get a certain energy going and they get very busy. and if it stops, it sort of loses that a little bit and it has a longer term impact. that is why i'm wondering if there is some way for them to negotiate somehow to get some conditions that improves the conditions for the neighbors, but yet allows them to get what

they need from a business point of view. do you have a comment on his options? >> yes. thank you. scott sanchez [phr-rplts/]. the board faced a similar question with another entertainment use on the rooftop and they continued that to the call of the chair and directed the party to seek a conditional use to legalize that rooftop activity area. with that stated the accrual of any penaltis. >> have i a question about that. how is that different from us just granting the appeal and finding there is no violation. >> you could do that, too. the board as options, you could uphold the zoning administrator's decision, penalties would begin to accrue. if interest was no re-hearing request filed, and they stopped operating in violation of the conditions of approval. you could overturn the notice of violation and penalty. if you did do, that i would suggest some very clear limits

on the hours of operation, otherwise the district itself does not have many in terms of limitations on hours of operations. or you could continue it to the call of the chair and allow them to go through the cu process. those are some of the options that are available. you remembered that other case took three hearings and four continuances. and probably several years. >> and they sold the business. >> they went under. x the reason i'm concerned about trying to negotiate something here is that i don't know that that is going to give the public the opportunity to weigh in on this issue. >> i would -- again, i don't have a particular issue with suspending the penalties and all of that sort of thing, but i think it needs to go through the proper processes and channels to get to the proper result.

is the continuance the way to do it? >> that led to a cu application and actually the cu was granted by planning in that instance. but it had its own series of conditions. is that yours? >> i will move to continue to the call of the chair. is that how you would? >> stay the penalties? >> correct. >> and so that the appellant can seek to modify conditional use authorization? >> yes. >> okay. when you are ready. >> we have a motion from commissioner lazarus to continue this matter to the call of the chair, the board's indefinite calendar public hearing has been held and closed and it's to allow the appellant time to seek a

modification of the conditional use. on that motion, vice president fing? >> we're staying the penalty? >> yes. >> it's automatic. >> we suspended the nov at the time of filing. >> on that motion, vice president fung? >> aye. >> president hwang is absent. commissioner hurtado? >> aye. >> thank you. vote is [#34*-6789/] 0. this matter is continued to the call of the chair. >> okay. shall i call the last item then. vice president? >> okay. that is item a and b, 8a and 8b, 12-11 0 and appeal not 12-11 2 subject properties at 124-128 fillmore street and the appeals are fileded by david nale and deborah stott separately against the zoning administrator. and both are appealing a letter of determination dated august

28th, 2012. regarding a request to extend the expiration date of variance 2005-008v. and commissioners, and those here representing the parties, this is a slightly unusual case in that we have one appellant, who is also the determination holder. so that the order of presentation will be slightly different this evening. i would ask that miss stott begin presenting her case first. and she will have seven minutes. and then mr. nale will have 14 minutes, 7 as an appellant and 7 as a determination holder. if you could kindly wait until vice president fung is back to start. >> or and here he is. when he is seated, you can begin. thank you. >> i apologize. >> good evening commissioners.

my name is deborah stott. i live at 73 germainia street and have since 1996. the document in question allows a garage that is to be built one inch from my living room -- bedroom and it's 17' high, 18' deep and the pit is going to extend beyond the foundation of my house. i am appealing the third extension of this variance, because well first off, i feel that a lot of extensions and delays have been due or related to the owner's own actions or inactions over the years. i also believe that the recent change of use does not meet the variance stipulations. and there has been some unanswered questions or at least no answered question for me about the overturning of section 1 88 of the planning

code for an extension or expansion of the building. the third reason is that the circumstances and regulations that have informed the appeal of the variance in 2005 has changed in the last seven years. the variance was filed in march of 2005. i attended along with my neighbors at 71 germainia street the hearing, the variance hearing. we wrote a letter of protest and it was to no avail. the variance was aproved. kun struction for this garage was approved in december of 2005. during summer of 2005 ther was renting rooms as the building

emptied the tenants he who's to renovate the flats and expand his hotel rather than work on the garage. the first work that was done on the garage was curb cut. i filed an appeal in may. for a change of use violation. the permit was suspended in may and it was revoked in may of '08. to my disappointment and [tkpha-eus/] a new permit was granted six months later. but the garage was not built due to the fact that -- due to the home depot abatement and fines that were outstanding. the first installment was not paid for these fines until february of 2012. years were spent negotiating

how to pay for the fines and how much they were going to be. so the garage permit expired. also delaying the whole process of building the garage was the change of use that was desired by the owner of the building david nale. he changed his building to group housing and this caused the delay. in 2008, actually after the revocation, mr. sanchez was staff at the appeal. when mr. nale spoke of having both the garage contractor and the architect available to show that and i quote, "that it is a separate standing building. it uses no foundation, no supporting walls and no electricity from the building." at the july open house for the

garage that david hosted it looks to be the same plan that was on view when the first garage was proposed. if no determination has been made on this extension or any extension over the years, then i think the extension is granted in error. let's see things have changed over the course of the seven years in the neighborhood. there is a lot more concern for the effects on dwelling units of garages. there are guidelines for adding garages. there are better streets, 98.1. the sound ordinance no. 29. in 2005 no review was needed to

put this garage in, but the fact is that my house is dated back to -- probably 1885, the first people living there that were living there in 1889. it's a house with a very fragile foundation and it's been supported bit earth around it for well over a 120 years or 110 years anyway. and i lost the piece of paper. so basically i guess will just leave it as mr. nale, his choice to run the hotel rather than build the garage in 2005 or 2006 has come full circle

and the building does not meet the restriction of the variance because of the change of use of the building to an other housing or group housing, which just isn't stipulated in the variance. and if mr. sanchez issued this extension, i believe it's in error. so thed parking is no longer required. as a family dwelling, this is only allotted two park space and the garbage is three. i guess i feel that the variance runs with the property not the individual, not their desire for profitability or not their hardships. i don't think those are relevant to the variance decision. and i believe there pl sanchez

acted in error by granting this extension and if it's not rescinded, he is granting a special privilege to the owner. thank you very much. >> thank you. we can hear from the perform holder's representative. >> good evening brett gladstone representing david nale. first of all, i would like to mention that it's been seven years since david nale started the process of creating a 3-car garage. last year in february, we presented to the planning commission a code-complieding group housing project with three units, 15 total group

housing rooms. the planning commission ruled that it code-complying. the commission did not assess any penalties, which is different than what the appellant just said for it having been run illegally. the thousands of dollar assesed to my client was because the planning department came up with hours showing that they had put in extra hours on the various appeals, totaling $15,000, in extra hours, but the planning department in handling the appeals. it took two years to get to the commission. the commission was told my housing advocate deen preston that group housing ways good affordable housing use. and the commission president christine olague, now the district supervisor voted in favor of the group housing. the 2005 waiver of course gave

a waiver of two things. the open rear yard didn't have to be provided, because the zoning administrator decided a garage should be put there. and allowed a non-complying structure to expand. i would like to read the finding in the 2005 variance about the parking. the zoning administrator said that he is granting rear yard variance because "it will allow the subject property ownering to provide off-street parking foyt units contained in the building, a substantial property right possessed by other properties in the same class of district," and that circumstance certainly hasn't changed. what is really important to note that the appellant was at variance hearing in 2005 and she admitted after that she did not appeal that. why, i don't understand. because the effect of what she is suggesting here now is really a late appeal of that variance seven years later. a request for a late jurisdiction

really is what it seems to be to me. very odd. neighbors usually support more off-street parking. yet, here they didn't. and we believe it's only to delay the group housing approval. neighbors have said in that appeal, "the wrong kind of people will be moving into the neighborhood." there was an appeal to the board of appeals of the garage and they were successful. the board of appeals ruled that because there was an outstanding notice of violation on the building for running a hotel or group housing without permit, that the board felt they could not issue the permit for the garage. that is the practice of planning not to issue one performance when there is unrelated notice of violation, which of course was -- the notice of violation didn't result in any penalties,

because the planning commission approved the group housing. then the -- we don't really understand why the zoning administrator hasn't extended this beyond november 26th. it is virtually impossible for the building permit, which has to be issued by then, to issue. even if the planning department was to tomorrow send out a 311 notification, then it's 30 days if no one files a dr and that would mean the very next day the planning department would have to issue a building permit and i have never seen the building department do and this a understand that they have more review do. we have heard that the appellants will be filing a dr and obviously we're going to go beyond the 30 days that starts tomorrow, if the 311 is sent out tomorrow. i simply don't understand why the zoning administrator has not

extended but we'll hear from him. missing the november 26th deadline means that my client those seek another variance and that variance we believe to be appealed back to you. and we're not sure the zoning administrator would issue it this zoning administrator is different from the last one and this zoning administrator state he had may not issue a rear yard variance again. even if issued again, the neighbors would appeal it. i have spoken here a number of times about the doctrine of vested rights in which courts have told administrative bodies including many years ago your commission that once a permit is issued and it's issued validly and a person spendion substantial money and time and reliance on, it it's a vested right that the city cannot take away. and i believe that vested right

exists here. and that it's not appropriate to take it away by doing effectively denying the variance by not allowing an extension, when an extension will be necessary. again, the finding that others in the neighborhood have a property right, have parking, and that is appropriate to give to this owner was never appealed. this appellant despite being part of a neighborhood group having brought two appeals already, and this one, despite being a like party to file a discretionary review is now requesting that there be no extension and it seems to me something out of a cavka novell or perhaps "catch 22." the

merits of garage variance is not before you. there is currently before you a neighbor appeal that has caused a delay. he obviously found that miclient wasn't the majority source of the delay. i don't think the facts have changed. my client has not been the major source of delay. if you would like, i will talk to you about the document you that see in our overhead, if you turn it on. that indicates what delays occurred and how long and who caused them. my client may have been the cause of minor, small ones.

the tenant will say or perhaps the zoning administrator that perhaps it's not policy to require a number of parking spaces for group housing and may say that the parking wasn't allowed for group housing. but for a three-unit building, but the variance indicates that it's not the use that is triggering the use of apartments versus housing, group housing that is triggering the finding that there should be parking. he has said in the 2005 that the parking right for this lot, not for this use, is a substantial property right possessed by others on the property. i'm going to hand it over to mr. nale and then to his other attorney. thank you. >> hello. my name is david nale and i am the owner of the property at 124-128 fillmore.

thank you for your consideration in hearing about our proposed garage. i purchased the three-story property in 2004, when it was rented by individuals who then found roommates through roommate services or otherwise. the units were not occupied by families related by blood or friendship. the property now operates in a similar manner, but approved by the city and called in the planning code "group housing." that means that tenants still rent individual rooms, but they have their own lease and they are no longer tied to the lease of a main [ta-epbts/]. tenant and as a result of that, all tenants are protected by rent control because they stay more than 32 days. the tenants have indefinite month-to-month leases. so they rent as along as they want. i have been working diligently to obtain permission to build